If you are a male college student accused of sexual assault, your good bro, Donald Trump, has your back. Yes, this administration seems to have finally found itself a friendly constituency in academia. For those poor partying frat boys, forced to parse the word “consent” in the middle of an all-night kegger, help is on the way.
Remember how President Obama took on the issue of campus rape? Disgusted to learn that one in five female college students had been sexually assaulted, the former president made the subject a keystone of his domestic agenda. He ordered the Department of Education to launch investigations into the way schools were dealing with the problem. Under threat of losing federal funds, those institutions became far more aggressive in handling sexual assault complaints. All that is about to change.
Enter Trump’s Secretary of Education Betsy DeVos and her recently appointed leader of the department’s Office for Civil Rights, Candice Jackson. They are on a mission to roll back many of the Obama era policies designed to make campuses safer for female students. The duo spent time last week hearing from alleged sexual assault perpetrators, who insisted they did absolutely nothing to justify their expulsion. DeVos and Jackson also met with representatives of a white male advocacy group called the National Coalition For Men. The NCFM believes there is a huge problem of women lying about being raped by men.
Although Jackson, head of the Education Department’s civil rights office, is herself a rape survivor, the men’s rights lobby couldn’t have found a more kindred spirit. During the 2016 presidential campaign, Jackson dismissed the complaints of more than a dozen women accusing Trump of sexual assault or unwanted advances, calling them “fake victims”. She was equally dismissive of rape complaints from women college students, saying that “90% (of the accusations) fall into the category of ‘we were both drunk,’ ‘we broke up and six months later. . .she just decided that our last sleeping together was not quite right.’”
DeVos agrees with Jackson that the pendulum has swung way too far in favor of the accusers. They want to reverse course. The Education Department has jurisdiction because Title IX of the Civil Rights Act prohibits sex discrimination at any school receiving federal funds. Under the Obama administration, the department issued 19 pages of guidelines for colleges to use in investigating sexual assault and harassment charges. It also warned the schools that their failure to comply could result in a loss of federal funding. Under the Obama guidelines, schools were urged to use a “preponderance of the evidence” test in adjudicating sexual misconduct complaints. It’s the same standard of proof used in most civil litigation. Basically, it means the party with the strongest evidence prevails.
The men’s rights advocates, however, insist that students should never be expelled and have their lives ruined by what they regard as a low standard of proof. Their solution is for colleges to turn sexual assault complaints over to the criminal justice system and take no independent action. It’s an absurd suggestion. First of all, this is not an either-or situation. A student who is raped can – and should – file complaints with both the school and the police. They are separate systems, with different interests and outcomes. To get a rape conviction in court, the state needs to prove its case beyond a reasonable doubt. Such a high standard of proof is justified on the basis that the government is seeking to take the defendant’s liberty away. It’s a different story when it comes to colleges and universities trying to maintain a safe learning environment. Schools routinely expel students if the weight – or “preponderance” – of the evidence shows they committed, say, plagiarism. Do we really want to treat sexual assault as a less egregious campus offense than copying a term paper from Wikipedia?
The ugly truth here is that a rape culture reigns supreme on many campuses, fostering the unfortunate belief that sex-while-intoxicated inherently implies consent. It does not. But many prosecutors shy away from taking such cases before a jury. A he-said-she-said prosecution, laced with an alcoholic haze, is often a tough sell for a jury. All the more reason for colleges to expel students when the weight of the evidence – a bar lower than that of a criminal court – shows that they engaged in inappropriate sexual conduct. Otherwise, a decision not to prosecute means the accused attacker remains on campus.
We have always used dual tracks in dealing with actions that may violate the rules of a workplace or university, as well as the law. And the levels of proof have always been different. We have this unalienable right to liberty, and it can be taken away only upon the highest standard of proof. The right to hold a job or attend a specific school is not so unalienable, and while nobody should be fired or expelled without proof of wrongdoing, the test for that proof is not necessarily the same as that used in a criminal court. A student caught selling drugs on campus, or stealing equipment from the biology lab, is likely to be kicked out of school, regardless of whatever criminal action may be taken. Sexual assault should be treated no differently.
Yet, the men’s rights lobby is pushing a seemingly receptive Trump administration to tell colleges to take no disciplinary action for sexual misconduct until, and unless, there has been a criminal conviction. That might play well for Trump’s base of supposedly forgotten, angry and trod-upon white men. It is nothing short of a nightmare for any student looking for a safe place to learn.